Repeal Amendments: Experiments in Recidivism

For a sect so committed, in name at least, to the utmost constitutional fidelity, tea party groups seem bizarrely capable of questioning the very most basic tenets of American constitutionalism. And with surprising frequency.

The latest example, which I wouldn’t mention except that I’ve had it cited to me several times now, and seen it supported by quasi-reputable sources like the Cato Institute, is the bizarre notion of a “repeal amendment.” The proposal is essentially this: the addition of an extra constitutional amendment, which would permit a less-than-unanimous coalition of states to, on their own authority, repeal Acts of Congress.

Here we’re struck with the very rare case of a (proposed) constitutional amendment that’s thoroughly at odds with the essence and design of the original document. A “repeal amendment” would effect a fundamental restructuring of the Constitution, as originally designed, and partially resurrect the long-defunct Articles of Confederation by giving rogue coalitions of states a heckler’s veto over the federal union. More importantly, the result would represent an end-run around the House of Representative and the Presidency. By creating a bicameral legislature, and making its pronouncements subject to the veto of an executive elected (more or less) at-large, the Founders clearly and deliberately intended to temper the influence of states qua states on the lawmaking process.

This amendment will never come to be; but what madness leads one to even suggest it?

The People’s Work…

Marius is a government attorney for a jurisdiction in the New York metropolitan area. His views may coincide with, but do not represent, those of the people of the state of New York, or his former clients.